ESTATE PLANNING LAW REPORT: October 2016 What Not To Do, And What To Do, When Deciding How To Handle The Contents Of The Family Homestead

I have heard lots of stories over the years about how families have handled removing the contents of the family homestead when the time came to sell it, after the family members who lived there passed away. A blogger whose posts I read occasionally, who uses the screen name Coyote, recently put up a short post about how his family handled it. I think the experience he reports is fairly typical. The method he describes involves getting rid of stuff in stages as you are emotionally able to do so. That isn’t necessarily a bad technique except that it inevitably results in punting the issue to your children to some extent, as he admits.

Nathan Hannah, Attorney

My long-standing advice in dealing with the house contents (the term people in my line of work seem to like to use is “personal effects,” but I prefer “house contents” or simply “stuff”) is this: if another family member says, “I want that,” the correct answer is “OK, you can have that.”

As for your stuff that has significant meaning and/or value to you, those are the items that you should put on your tangible personal property list. I have written previously about making a tangible personal property list, but it bears repeating. The tangible personal property list is a list you can make to go with your will. Arizona law says that a will may refer to a written statement to dispose of tangible personal property other than money. That’s the tangible personal property list.

One of the benefits of using a separate list for your tangible personal property instead of listing those items in your will is that you can change the list without having to make a new will. As I always tell people after they have signed their wills, you can change the will as long as you are alive and competent, but changing it requires executing another document with the same formality as the original, meaning with witnesses and a notary. With the tangible personal property list, you can just write a new one, without notary or witnesses or anything. Make sure you tear up the old one, and put the new one with your will.

The list can be prepared before or after your will is signed, and can be either handwritten or typed, as long as it is signed. It must describe the items and the beneficiaries “with reasonable certainty.” I always suggest that the list specifically refer to your will, like this: “This is the personal property list that is referred to in my Last Will and Testament dated _______________.”

You should also be aware that a tangible personal property list isn’t effective without a will. Unless it qualifies as a will on its own, which it probably won’t, the list must be referred to in a valid will and must contain items, other than money, that are not otherwise specifically disposed of by the will.

What sorts of items can be on a tangible personal property list? I explain it this way: anything you can hold in your hands, from a diamond to a grand piano, except cash, is tangible personal property and can therefore be included on your list.

The list doesn’t have to be exhaustive. It can identify items individually or by category (for example, “my Hummel figurine collection,” or “my Dremel tool and all its accessories”) as long as the items are adequately identified. Just remember that any items not identified either individually or by category on the list will be included with the “residue” (i.e., the rest) of your estate, and won’t be affected by the list.

That takes us back to where I started this discussion: the items that aren’t on your personal property list and that don’t have any significant monetary value will end up as the stuff that has to be parceled out among your family members, or stored until no one wants to keep it anymore.

So when you’re making a will, if you have tangible items that you want particular people to have, make sure that your will includes a provision for a tangible personal property list, write and sign the list, and keep the list with your will.

Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions. He is also a noted blogger, and you can find more of his articles on his private blog,

Contact Attorney Hannah: nhannah@dmyl.com or 520/ 322-5000

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